About This Podcast

Critical safety documents are continuously withheld from the public with a total lack of openness and transparency. Fairewinds founder Maggie Gundersen and Enformable.com editor Lucas Hixson discuss the difficulties the public has in obtaining information from the Nuclear Regulatory Commission and from reactor owners. The Freedom of Information Act (FOIA) has been a failure in allowing the public to have access to information that affects the safety of their communities.

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KH: It’s Thursday, March 21st and this is the Energy Education podcast. I’m Kevin. On today’s show, we’re talking about information and how difficult it can be for the public to access it. Concerned citizens and nuclear watchdog groups have a very difficult time trying to access critical safety documents relating to nuclear power. We’ll talk about how the Freedom of Information Act request might not be as helpful as it could when trying to obtain documents. My guests this week are Fairewinds’ Maggie Gundersen and Enformable.com editor Lucas Hixson. Welcome to the show, guys.

MG: Thank you, Kevin. Fun to be here.

LH: Thank you for inviting me, Kevin.

KH: Lucas, let’s start with you. You spend a good deal of your time researching information on nuclear power plants. Of course, this involves government Freedom of Information Act requests and lots of on-line research. Can you just talk a little bit about that process?

LH: Well, yeah, I’d be happy to. And it is something that you have to pick up the nuances and the details to. It’s not like any other industry or any other research I’ve ever been involved in. The difficulty in retrieving information is astounding. I’ve never had such problems with contention over what appeared to be just such minor detail documents, and then the way that the information, you receive it, it’s not always the clearest picture of the situation. It’s more or less a forward-looking marketing statement which is meant to attract investors or insure market stability. So it’s been a very interesting experience for me and it’s something that over years, you learn to pick up the little nuances and the ways in which information is disclosed or not disclosed. Sometimes the best information that you find is inferred by what you don’t find rather than what you do, because what you do is often very few and far between and scattered throughout a huge haystack.

KH: So you’re telling me that when you research documents and you’re looking for nuclear information on line that a lot of what you’re finding are forward-looking sort of promotional documents. Now I want to bring Maggie in on this one, too. Can you give me an example of some of the language you might find when you’re looking for technical documents on nuclear information?

LH: I would say there’s been a trend moving from releasing more data-oriented information to more marketing-oriented information. And the data is being hid behind proprietary information, even though that’s probably in most cases not the most accurate depiction.

MG: For me as a paralegal, one of the issues is actually getting what we ask for. So we would ask for specific documents and sometimes we get boxes and boxes of documents that have nothing to do with what we’ve requested. And then all the papers are shuffled. I’ll give you an example.

KH: So you’re talking about a Freedom of Information Act request.

MG: Well, I’m talking about documents in a legal case where we requested documents as part of the discovery process. So it’s similar to a Freedom of Information Act request in that the parties are entitled to see all the documents that each side has. And we – the plaintiffs ask the defendant for the particular documents and they don’t get them and they don’t get them. And finally they come in very close to time of reports due or the time a deposition is coming up, so that there’s almost no time for the team to look at the documents. And they come – boxes; literally, boxes. And in one case, we’ve been asking for the document – a particular logbook – a nuclear control room logbook and we ask for it for a year. And finally got it right before a deposition and filing that was due. And I hired somebody else to come in who specialized in putting things in order numerically. And we had asked – as Lucas could verify for you, there are times you ask for a specific item, and if you don’t phrase it exactly right, you don’t get that item. Well, we had asked for specific dates when nuclear accident had happened and radiation had gotten out of a nuclear plant, and we wanted to see the documents for those dates. We wanted to see the control room logbook. We wanted to look at all the stuff. We finally got this and it was narrowed down to one box. And everything was out of order. The logbook had been all torn apart while it was copied. So I had someone come in and she catalogued every single document and order. And guess what? All the pages we asked for were missing. The specific dates were missing out of this year of control room logbook.

KH: So I’m reminded of the scene from Miracle on 34th Street where the judge is just about to find that Kris Kringle is in fact Santa Claus and they come in and they dump all the envelopes on his desk – just envelopes and envelopes, you can’t even sort through them all.

MG: That’s a very, very good analogy. There’s also a film, a legal film that was made with Gene Hackman. I can’t remember the name of the film but it was about the Pinto – Ford Pinto case, where they finally got the documents and a whole tractor trailer load of papers is delivered. That’s based on – it’s a fictionalized account in the film, but it is based on a true story.

KH: It’s based on one of Lucas’ FOIA requests.

LH: Have you ever played laser tag?

KH: I have.

LH: The very process of tagging someone is very short and – but what you end up doing is arguing over hits and misses because the entire purpose of the game is smoke and mirrors. And that’s a lot of the ways how getting information is. It’s (a) a game of smoke and mirrors; and (b) the majority of your time you spend arguing about hits and misses. So there’s two or three main ways which information is released. And I know in the last podcast, because I listened to it, that Arnie had been talking about releasing information on Friday afternoon at the end of business so that by Monday morning, it’s old news, and I completely concur with that analysis. But there’s two other ways specifically with FOIA information and Maggie has alluded to both, how they frequently handle this release. And I call the first one the pump and dump, where you find as much irrelevant data as possible and you hide the few needles of true information amidst the haystack and you release this entire pile of information and hope to God that they don’t have enough time to process all of it before they have to respond; or (b) more or less a feed-and-bleed type situation, meaning you’re going to get really ticky tacky with all of the semantic nuances of the request. And if they requested a document, well, does a document mean email or memo or phone call. That’s up for anybody’s contention. And what we find is rather than finding a reason for the justification of release, we find that often officials are bogged down trying to find justification for the omission of information.

MG: Exactly.

KH: So what you’re saying is you have a problem from the get go getting the information and narrowing it down to what’s relevant, but also you can count on information being excluded from the mountain of papers you receive – relevant information.

LH: Very true. I guess the way that I would put it is we have many public agencies that pretend or promote the fact that they protect the public interest, but when you look at how they handle the information process specifically, you begin to see very clearly who they are protecting and whose interesting they are acting in behalf of.

MG: That’s true. We are currently working on two cases. The NRC Atomic Safety & Licensing Board – ASLB – have had us sign the most onerous nondisclosures that I’ve ever had to sign in my career, and I’m just stunned that material is being called proprietary that should be open and accessible to the public.

KH: Just to make sure our viewers understand, when you say the material is proprietary, you’re telling us that it’s information that’s not being released because it involves the company’s trade secrets, the technology that belongs just to that company. They want to protect that information, and that’s proprietary information.

MG: That’s the correct term for proprietary information and that is how it’s supposed to be used, but this process is being abused – terribly abused. One example is with San Onofre. And we’ve talked about San Onofre several times on our podcasts and you specifically had an interview with Arnie about information that was withheld and just recently released. And that’s the one I’d like to talk about. We prepared testimony for the Petition Review Board, 2.206 Petition Review Board. And testimony for the ASLB both referred to documents that we knew existed and breaches that we believed that Edison made, that we as Fairewinds believed that Edison made. And weeks and weeks of research was done, analysis was done and then a live presentation was done before the ASLB in Washington, D.C. And all of a sudden, Senator Boxer and Congressman Marke received a document from a whistle blower that verified exactly what we had brought forward. And that’s called the MHI document, the Mitsubishi Heavy Industry document. And it talks about how the decisions were made at San Onofre. And it turns out that the NRC had that document in their possession. They had it beginning in September or October – for sure in October. They knew about it. FOIA’s had been requested of them, information had been asked for. They had not responded to our client, Friends of the Earth. So much of our case material from the very beginning, the things that we had presented alluded to that very document and that this had happened. And this verified every single thing that Fairewinds had brought forward, and yet the NRC withheld that document from the parties involved in the case and from the general public.

LH: Whose best interest is that in? I’ll add to what Maggie is saying here. Look at the original intend of the Freedom of Information Act. It is meant to be a process – a process which protects the public interest. But in reality today it’s now a roadblock and being used to subvert that attempt. Now this is nothing new. This has been happening since the beginning of the AEC. And instead of using the Freedom of Information Act to withhold certain proprietary information, we have seen the industry and the regulation bodies use it to attempt to hide science, which is just an impossibility in the first place. You cannot hide science.

MG: When Arnie and I worked in the industry and we would go into technical meetings and both of us – he had his whole career was technical and part of mine was before I went into nuclear public relations – when we’d go into meetings and the NRC would be there, the utilities would hold the documents so they’d belong to them. So the NRC would look at them in the meeting and then they’d slide them back across the table to the utility or the energy company. And the NRC could honestly say, oh, we don’t have those documents. Oh, they don’t belong to us so we can’t let the public see them because the utility, the company, the corporation is claiming that they’re proprietary and who are we to judge that. It’s really a nasty sleight of hand.

LH: The public might see that as a small issue, but when you remember the fact that due to the information withheld from the public at Fukushima Daiichi, they did not up their tsunami wave predictions. They did not know that they were going to have issues with having the diesel generators down below ground, because specifically they had been downplaying and hiding reports that had been released before the event. So it is a significant problem.

MG: Why is information being restricted?

LH: Because all of our actions in society are based on perception; not always the reality of what’s happening but what we want others to think is happening or what we predict will happen. So when you’re dealing in those types of areas, you don’t talk about what is as much as what will be in the way that you want it to be. I call that a forward-looking statement. It’s essentially a marketing slogan meant to incite interest, to attract investors, but it is not an accurate representation of the events as they are in reality. And so we have seen this recent shift – I would say recent, within the last 20 years most viciously, where instead of releasing data oriented to back up the predictions and assumptions, we have seen reliance on forward-looking marketing statements instead to assure the public rather than confirm the assumption that’s being made.

MG: Right. The documents are being misused and the NRC knew for six months. So Friends of the Earth spent money on attorneys and experts and we spent hours and hours preparing testimony when the NRC had the answers in their hand – answers that senators were asking for, congressmen were asking for, representatives in California were asking for, the interveners wanted. And they knew it all was there and they didn’t give it forward. They purposefully chose to withhold it. And that shell game benefitted who? It benefitted Edison. And there’s all this discussion still going on that Edison can possible restart and yet there are many, many, many more documents that prove it’s entirely not safe to restart. So where are we looking at the public good? Is that the public good for California and the people living and commuting near that plant? Or LA being the busiest port in the US and one of the busiest ports in the world? What does that mean for all of us if the NRC, which is supposed to be the public’s advocate is instead playing sleight of hand and protecting a corporation?

LH: And if we’re going to talk about San Onofre, let’s put the whole thing in perspective here. Here’s how it started. It started when Southern California Edison decided that going through a proper vetting process was too much work and would take too much time. So they created a special contract with Mitsubishi which restricted or set predetermined standings for the contract of how these steam generators were going to be created, which in turn led to the advance degradation, despite the fact that at the time of installation, both Mitsubishi and Southern California Edison made multiple – quote – forward-looking statements – about how long these steam generators would serve the people of California. They might even attempt to relicense these reactors because these steam generators were so good. Yet not even outside of one full refueling cycle we have seen the fact that both of them have been out of operation for a year because you cannot reverse this damage and you cannot stop this damage.

MG: At a cost of 1 billion dollars to the California rate payers. They have lost 1 billion dollars in this process.

LH: How many megawatts of solar energy could we put in California for 1 billion dollars? I’d love to have somebody tell me.

MG: Yeah. Let’s look at another case, though. Currently, Fairewinds is working on another case and we’re right in the middle of preparing our testimony and looking at data and answering questions from the attorneys for the interveners so that this can be presented to the Atomic Safety and Licensing Board – NRC again – for hearings. Now going back 2-1/2 years, we were experts and brought forward a contention, and the contention is part of the process in which a group says that they have a problem with the process and they want the NRC to take another look. And our contention was accepted. Finally. And that was 2-1/2 years later. Now we’re finally looking at the additional evidence and bringing things forward.

LH: I want to refer back to something that Maggie was talking about a minute ago when she talked about who holds possession of the documents and how that can be used to prevent information from being released. Because this happened during the Fukushima response here in the United States. In the United States, all of our licensing stations were collecting data. They have ongoing radiological environmental analysis at each of these stations, and they were collecting information data that showed that radiation from Fukushima was in fact traveling over the United States and being deposited on the ground with rain and any other type of deposition. But I have emails which we’ll be providing in links for this podcast where the NRC admits that they are not authorized to share the results of those measurements from, in particular, San Onofre and Diablo Canyon specifically because of the fact that they do not belong to the NRC. They belong to the plants. And that because the NRC does not have those documents, they were not in a position to share them with the state or local counties. So this is just reaffirming the fact that there are multiple ways to get around this. And the question is, is enough pressure being put onto all these officials accountable for the job that they have been appointed to do?

MG: I agree with that. In this case we’re working on now, we brought these contentions forward, we’re looking at the new data, and what they’re calling proprietary is how a company that’s trying to build a new nuclear plant prepared its quality assurance procedures and department. And did they adhere to the standards that are in the regulations. And they did not. We’ve already shown that. And now as we go back to work on this case, we signed this nondisclosure and they are calling everything that’s new since the contention was filed and accepted – they’re calling it all proprietary. That’s unbelievable. The public has a right to know whether or not this utility, to which they are a rate payer, is meeting critical standards of quality assurance for building, designing, fabricating and constructing a nuclear power plant. It’s an outrageous abuse of power.

LH: But it’s not just about information you’re withholding. When you do release information, it’s all about the messaging, the way that it’s put in forward-looking statements. And another PDF which we’re going to provide is from the California State Department of Health where they are talking about how to take the data which showed the increased levels of radiation in California due to the Fukushima event, and how they squashed it effectively by adding in the levels of public health limits. And we have shared this data with a couple of different experts and they have all replied back to us, saying that if you’re going to do this – in essence, if you’re going to take a graph and squash it down to look like a line due to the public health limit that you’re incorporating in there, then you use semi-log graphing and any other type of display is an unethical approach for a public agency. But yet that’s exactly what they’re doing. So it’s not just what information are we withholding but the messaging and the forward-looking twist that is put on all of this data, which to the casual observer, gives you a misperception of reality.

KH: So not only are they withholding the data for a number of reasons and using a number of methods, but when it does finally come out, it’s sort of repackaged in a way that misleads the public.

MG: Exactly.

LH: All nice and neat with a wrapping and bow.

KH: So we’ve talked about the industry and the nuclear corporations withholding data if they say it contains proprietary information. Another reason for withholding data is that it contains security information. Can you talk about that, Maggie?

MG: I’ve seen very little information that’s been withheld that contains actual security information. I think, again, that is a guise by the energy companies and by the Nuclear Regulatory Commission to participate in facilitating these corporations keeping things under wrap. It says oh, this item is a security risk and therefore you cannot discuss it. That’s just not true in almost every case. And even when there are security risks – for example, guards who fell asleep at the Peach Bottom Nuclear Plant or barriers to intake structures that aren’t secure and there’s a security risk, it’s interveners who bring those risks forward to the NRC, and the NRC still has done nothing to correct these security risks. But they claim it can’t be discussed because they are a security risk. So it becomes this vicious circle and who’s hidden the shell under the cover.

KH: So, Maggie and Lucas, I presume that your quest for information and pressuring industry and the government to release more of it will continue.